PAEZ, Circuit Judge:
In 1997, a Washington jury found Dwayne A. Woods guilty of two counts of aggravated murder in the first degree, one count of attempted murder in the first degree, and one count of attempting to elude a police vehicle. After two days of deliberation, the jury sentenced Woods to
On Friday, April 26, 1996, Telisha Shaver was house-sitting at her aunt's trailer home in Spokane Valley, Washington. Telisha
While at the trailer, Woods served himself alcohol and talked with Venus. According to Venus's testimony, Woods was upset that Jade was asleep and urged Venus to wake her up. Venus tried to wake Jade up, but Jade did not respond. At this, Woods became irate and, according to Venus, shoved her onto the couch and attempted to unbutton her pants. Venus said that she initially escaped Woods's grasp, but that he managed to grab her again and then slammed her head and neck against a door. Venus testified that she has no memory of what transpired from that point forward except for intermittent flashes of memory in which she recalls struggling with Woods.
At approximately 7:30 a.m., Woods forced Jade to wake up at knife point. He took her to another one of the bedrooms, where Venus lay unconscious and severely beaten. Woods forced Jade to help him loot the trailer and to give him her ATM card and personal identification number. He then raped Jade orally and vaginally.
During the attack on Jade, Telisha returned to the trailer to retrieve some personal effects. Woods seized and bound her. Jade, who was laying on the floor and feigning unconsciousness, later stated that she heard a baseball bat hit Telisha's head. Jade said that she was then hit in the head with the bat, knocked unconscious,
When Telisha failed to return home that morning, her mother, Sherry Shaver, decided to go to the trailer to check on her. She arrived at approximately 10:25 a.m. and found the door locked. Peering through a window in the trailer, she saw a man — whom she later identified as Woods — exiting from the other side of the trailer. She pounded on the locked trailer door, and Jade, naked and beaten, eventually opened the door. Sherry Shaver called 911.
Emergency personnel arrived at the trailer and took the victims to the hospital. While en route to the hospital, Jade told a paramedic about the events of the prior evening. At the hospital, she also told her father, the emergency room physician, and a nurse about what had transpired. Of the three victims, only Venus survived. Telisha died without ever regaining consciousness. Despite initially responding to medical treatment, Jade died the following day.
Shortly after Sherry Shaver reported seeing Woods leave the trailer, he was seen at two local businesses close to the crime scene. At one of those businesses, Woods convinced another patron to drive him to downtown Spokane. Within close proximity to where Woods was dropped off, a series of cash machine withdrawals occurred with the use of Jade's ATM card.
At approximately 12:30 p.m. that same day, Woods ran into his brother-in-law, Louis Thompson, at a grocery store in the downtown area. Thompson gave Woods a ride to the home of Johnny Knight, a friend of Woods's. Knight and his friend Mary Knapp testified that when Woods came to their home, he offered to sell them some jewelry and to buy one of Knight's automobiles.
Woods spent the night at Elizabeth Gerber's apartment. The following morning, Gerber asked Woods to leave the apartment. At trial, she testified that Woods became agitated and said he was "a wanted man" and she was "putting him on the streets."
Later that day, Knight heard a television broadcast that authorities were searching for Woods. In response, Knight called the police and agreed to lead them to Woods. With Knight's cooperation, sheriff's deputies followed Knight as he went to pick up Woods. After Knight picked Woods up, the deputies pulled the car over. Knight got out, but Woods jumped into the driver's seat and sped away. The deputies eventually caught, arrested, and interrogated him.
Woods told the interviewing detectives that he fled because he had a number of "outstanding traffic violations" and some "traffic warrants." At the time of his arrest, Woods had no outstanding traffic violations. Woods denied any responsibility for the crimes and claimed he had not been in contact with Venus for about a week. He further denied knowing a woman named Jade. He also told detectives that he had not been in Spokane Valley for about a month, that he had never visited a trailer home, and that there was no logical explanation of why his fingerprints would have been found in the trailer.
Woods was charged with two counts of aggravated first degree murder, one count of attempted first degree murder, and in the alternative, one count of first degree assault.
In the meantime, the prosecution processed the physical evidence in the case. Doctors had completed "rape kits" for all three victims, including taking a swab from the vagina of each victim. The rape kits were sent to the Washington State Police Crime Laboratory (or "WSPCL") in Spokane. At the Spokane lab, William Morig examined the swabs in search of sperm cells that might contain the DNA of the murder suspect. Morig found no sperm on the swab taken from Venus Shaver, but found usable samples from the swabs taken from Telisha Shaver and Jade Moore. The prosecution also obtained a vial of Woods's blood to use in DNA tests. That sample was sent to the Spokane lab as well. The WSPCL lab in Spokane did not have the required DNA testing equipment, so Morig's responsibilities were limited to preparing DNA samples from the rape kits and Woods's blood that could be submitted to other labs for DNA testing and analysis.
On August 23, 1996, Woods's defense counsel moved for a continuance of the trial date based on the fact that they had not received the DNA test results and that they needed additional time to produce mitigation evidence. Although Woods objected to this motion, defense counsel argued that unless a continuance was granted, Woods would be unable to receive a fair trial. The trial court ultimately granted the motion and reset the trial date for March 17, 1997.
On October 16, 1996, the prosecutor informed the court that the DNA evidence had not yet been sent for testing. The prosecutor represented that the results from the testing would be received by January 1, 1997. Consequently, the court ordered that the DNA test results be disclosed to the defense by January 1, 1997. The prosecutor also informed the court that the vial of Woods's blood had been mistakenly frozen and had cracked. The prosecution therefore needed a new blood sample for testing purposes. Woods objected to providing a new sample and renewed his objection to having the trial commence after the original date of October 21, 1996. The court overruled both objections.
By January 2, 1997, the WSPCL had returned only one of two DNA test results. That test, performed by a private company, showed that Woods was not the source of semen found in Telisha's body. At a hearing on January 13, 1997, the prosecutor informed the trial court that the testing of the sperm sample taken from Jade Moore was not complete. WSPCL performed that testing at its more advanced Seattle laboratory because it required a complex testing procedure. The prosecutor informed the court that the test would not be complete until the middle of February 1997. Defense counsel moved to exclude admission of the DNA evidence as a result of the delay, to dismiss the case because of prosecutorial mismanagement, and to continue the case in order to have time to adequately prepare for trial in light of the delay in DNA testing. The trial court denied the first two motions but granted the last and continued the trial to May 19, 1997. Before trial, WSPCL returned the results of the DNA testing performed in Seattle, which showed that the DNA taken from Woods's second blood sample matched the DNA taken from the sperm recovered from Jade Moore.
At trial, Venus and Sherry Shaver identified Woods as the assailant. The jury also heard Jade's statements, including her identification of Woods, via the testimony of a paramedic, nurse, and doctor who treated Jade and the testimony of her
The defense theory was that Woods could not have murdered Telisha and Jade or assaulted Venus because he was dining at a bar in downtown Spokane at the time the crimes occurred. To support this alibi defense, the defense presented testimony from an expert on eyewitness misidentification and from a bartender who testified that he saw Woods at a downtown bar on the evening in question.
The jury found Woods guilty of two counts of aggravated murder, one count of attempted murder, and one count of attempting to elude police officers.
Woods instructed his attorneys not to present any mitigating evidence at the penalty phase of the trial. Concerned about Woods's mental state, defense counsel requested a continuance of the penalty phase of the trial in order to have Woods's mental capacity assessed. The trial court denied the motion and ordered the sentencing phase of the trial to commence that afternoon. At sentencing, the prosecution offered the testimony of Sherry Shaver and Barry Moore, presented photographs of Telisha and Jade, and entered into evidence certified judgments of Woods's prior convictions.
Pursuant to Woods's instructions, defense counsel did not present any mitigating evidence. Woods did, however, invoke his right to allocution and made the following statement to the jury:
After deliberating for two days, the jury found that there were insufficient mitigating circumstances to merit leniency. Woods was sentenced to death.
The Washington Supreme Court affirmed the convictions and sentence on direct appeal. See Woods, 23 P.3d at 1079. The Supreme Court denied certiorari. See Woods v. Washington, 534 U.S. 964, 122 S.Ct. 374, 151 L.Ed.2d 285 (2001). Woods then filed a personal restraint petition ("PRP") in the Washington Supreme Court. Woods raised eighteen claims for relief, including an ineffective assistance of counsel (IAC) claim, a Brady claim, a claim that the jury had been improperly prohibited from viewing certain evidence, and a claim that newly discovered evidence required a new trial. The Washington Supreme Court denied Woods's petition. See In re Woods, 114 P.3d at 611.
Woods filed a timely notice of appeal and moved for a COA on all of his claims. The district court granted a limited COA, the scope of which we address below.
We review de novo a district court's denial of a prisoner's petition for habeas corpus. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir.2007). The district court's findings of fact are reviewed for clear error. Id.
Because Woods filed his federal habeas petition after 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this action. See id. AEDPA requires federal courts to defer to the last reasoned state court decision. Id. A federal court may grant a state prisoner's habeas petition with respect to a claim that was "adjudicated on the merits in State court proceedings" only if the adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
A state court decision is "contrary to" federal law if it applies a rule that contradicts the governing law set forth in Supreme Court cases or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision involves an "unreasonable application" of federal law if "the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case" or if it "either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407, 120 S.Ct. 1495.
In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, our "review... is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). We consider circuit precedent for the limited purpose of assessing what constitutes "clearly established" Supreme Court law and whether the state court applied that law unreasonably. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).
Woods contends that he made an unequivocal request to represent himself and that the trial court was thus obliged under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525,
Under Faretta, a criminal defendant may invoke the right of self-representation by making an unequivocal request and knowingly and intelligently waiving the right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. Here, during pre-trial proceedings, Woods twice informed the court that he opposed any continuance of the trial date. First, on August 16, 1996, Woods informed the court that he opposed any extension of time for the prosecution to file its notice of special sentencing proceeding
Shortly afterward, the prosecutor stated that "the defendant is indicating he wants to proceed pro se." The trial judge replied: "He didn't indicate that. He indicated he was able to do that." Nobody made any further references to Woods's request to proceed pro se throughout the remainder of the hearing.
On August 29, 1996, one of Woods's attorneys acknowledged in a written submission to the court that he was aware of Woods's desire for a "prompt resolution" of the case. On August 30, 1996, Woods's defense team renewed their request for a continuance. At a hearing on the motion, the judge stated: "I've heard Mr. Woods's point of view and I take it, it is unchanged. Is that correct?" Woods responded,
In concluding that Woods's request was equivocal, the Washington State Supreme Court analogized his request to that made by the defendant in State v. Luvene, 127 Wn.2d 690, 903 P.2d 960 (1995). There, frustrated by his attorney's request for a continuance, the defendant addressed the court directly and stated:
Id. at 960. In Luvene, the Washington Supreme Court concluded that these statements, taken in the context of the record as a whole, could be seen only as an "expression of frustration by [the defendant] with the delay in going to trial and not as an unequivocal assertion of his right to self-representation." Id.
Noting the similarities between the statement in Luvene and Woods's statement, the Washington State Supreme Court held:
Woods, 23 P.3d at 1062.
We conclude that the Washington Supreme Court's determination that Woods's pre-trial statement, as quoted above, was "not an expression of an unequivocal desire to represent himself," id., was not "an unreasonable determination of the facts," 28 U.S.C. § 2254(d)(2). Cf. United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir.1994) (expressly considering as a question of fact whether a defendant made an unequivocal Faretta request). Although it is not apparent what factual basis the Washington Supreme Court relied on to conclude that Woods was merely expressing "frustration," we cannot say, in light of the state trial court record, that the court's holding was unreasonable. Shortly after Woods stated that he was prepared to proceed without counsel, the trial court expressly disagreed with the prosecutor's statement that Woods was asking to proceed pro se, stating that "[Woods] didn't indicate that [he wanted to proceed pro se]. He indicated he was able to do that." Woods had the opportunity to correct or clarify the court's understanding if it was incorrect. Yet neither Woods nor his counsel reasserted the request to proceed pro se again during the
Woods next argues that admission of Jade Moore's out-of-court statements at trial violated his rights under the Confrontation Clause. The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. Under Ohio v. Roberts, controlling law at the time of Woods's conviction, admission of an out-of-court statement at trial did not violate the Confrontation Clause if the statement possessed "adequate indicia of reliability." 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Here, over Woods's objection, the trial court allowed five witnesses to testify about statements that Jade made after the attack and before her death. Deputy Douglas Lawson of the Spokane County Sheriff's Department, who responded to the scene of the crime, testified at trial that he asked Jade whether she knew who attacked her and that she responded it was "a guy named Dwayne." Carol Ragland-Stone, a paramedic who accompanied Jade to the hospital, testified at trial that: (1) when she asked Jade what had happened to her, Jade told her that she had been hit with a baseball bat; (2) when she asked Jade who hit her, Jade responded that it was a man named Dwayne; and (3) when asked whether she was sexually assaulted, Jade said yes. Jade's father, Barry Moore, testified that when he went to visit Jade in the emergency room, she gave him a detailed account of the incident. Barry Moore repeated this account to the jury. Dr. Edminster, who was working at the hospital where Jade was admitted, testified that he asked Jade a number of questions as part of a routine rape examination procedure. Dr. Edminster gave detailed testimony about Jade's answers to these questions. Finally, Dianne Bethel, a registered nurse who assisted Dr. Edminster in the administration of the rape examination, also testified as to Jade's answers to the rape examination questions.
To determine whether Woods's Confrontation Clause rights were violated, we must resolve whether Jade's statements to these witnesses fell within either
First, Woods argues that some of Jade's statements to Dr. Edminster and nurse Bethel were not elicited for purposes of diagnosis and treatment and therefore do not fall within the medical diagnosis exception to the hearsay rule. Under White, in order for a statement to fall within the medical diagnosis exception, it must have been "made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment." White, 502 U.S. at 356, 112 S.Ct. 736.
The Washington Supreme Court held that Jade Moore's statements to Dr. Edminster and Bethel were admissible under this exception because they were pertinent to later treatment for post traumatic stress disorder. Because this conclusion is at least plausible and because the Supreme Court has yet to address whether such statements relevant only to later psychological treatment fall within the medical diagnosis exception to the hearsay rule, we cannot conclude that the Washington Supreme Court's determination was clearly unreasonable.
Woods next argues that Jade's statements to Barry Moore and to paramedic Ragland-Stone should not have been admitted into evidence under the excited utterance exception. In White, the Court explained that statements that have "been offered in a moment of excitement — without the opportunity to reflect on the consequences of one's exclamation" fall within the excited utterance exception. 502 U.S. at 356, 112 S.Ct. 736. If, on the other hand, a statement is made after the declarant has had an opportunity to reflect or discuss the matter with others, it no longer qualifies for the excited utterance exception. Winzer v. Hall, 494 F.3d 1192, 1198 (9th Cir.2007) (interpreting White).
According to the Washington Supreme Court, "it was not manifestly unreasonable for the trial court to admit Jade's statements to Ragland-Stone and her father as excited utterances." Woods, 23 P.3d at 1069. As to Jade's statements to Ragland-Stone, the court noted:
Id. at 1068. We must accept the state court's factual findings unless objectively unreasonable. 28 U.S.C. § 2254(d)(2); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004). Because there was no evidence to the contrary, the state court's conclusion that the statements were made "in a spontaneous manner, on the heels of a clearly startling event," was not objectively unreasonable. Woods, 23 P.3d at 1068. Given those circumstances, Jade's statements to Ragland-Stone met the White requirement for an excited utterance: they were offered "in a moment of excitement — without the opportunity to reflect on the consequences of [her] exclamation." White, 502 U.S. at 356, 112 S.Ct. 736. The state court's conclusion was therefore not objectively unreasonable. For the same reasons, we conclude that the state court was not objectively unreasonable in holding that Jade's statements to Deputy Lawson fell within White's requirements.
Jade's statements to Barry Moore, however, do not fall within the excited utterance
Violation of the Confrontation Clause, however, is subject to harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). If the error did not result in "actual prejudice," Woods is not entitled to habeas relief. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Here, Jade's statements to her father were, for the most part, cumulative of the statements she gave to Edminster, Bethel and Ragland-Stone. Jade's prior statements all included the details of the crime and identification of Woods as the perpetrator. Furthermore, Jade's prior statements were cumulative of the testimony by Venus, who also identified Woods as the attacker. Thus, Woods cannot establish prejudice as a result of the Confrontation Clause violation, and he is not entitled to habeas relief on this issue.
Woods argues that the prosecution withheld material, exculpatory evidence in violation of Brady v. Maryland. Specifically, Woods argues in two Brady sub-claims
Woods argues that the prosecution had knowledge of WSPCL's DNA testing and review protocol, which included discarding "draft" reports, and was therefore required under Brady to disclose the lab's review process. Woods bases this contention on Dr. John Brown's conduct detailed in State v. Barfield, 2003 WL 22121058.
In a declaration submitted to the Washington Supreme Court in Woods's PRP proceeding, MacLaren, who also reviewed Dr. Brown's analysis in Woods's case, stated that the review process followed in Barfield — including peer review and discarding erroneous draft reports — was standard procedure at WSPCL. MacLaren declared, however, that "out of the thousands of autorads this lab has developed there have been less than ten instances where a resizing was necessitated by the review process."
Woods argues that had he known about WSPCL's practices at the time of trial, he would have used the information to impeach Dr. Brown and to challenge the prosecution's DNA evidence by questioning the quality of WSPCL's internal review process. Woods contends that Dr. Brown's misconduct in the Barfield case revealed a longstanding practice of hiding the results of exculpatory tests and that there were indicia in this case that draft reports may have been destroyed. Specifically, Woods points out that WSPCL assured the prosecution that testing would be completed by January 1, 1997, but it was not completed until February 20, 1997. Woods argues that it is reasonable to infer that the delay was due to one or more tests that were never reported to the defense.
To prevail on a Brady claim, a defendant must prove that "[1] The evidence at issue [is] favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence [was] suppressed by the State, either willfully or inadvertently; and [3] prejudice ... ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see Brady, 373 U.S. at 87, 83 S.Ct. 1194. To establish prejudice, a defendant must demonstrate that "there is a reasonable probability that the result of the trial would have been different if the suppressed [evidence] had been disclosed to the defense." Strickler, 527 U.S. at 289, 119 S.Ct. 1936 (internal quotation marks omitted). "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
The duty imposed by Brady extends to evidence in the government's possession not known to the prosecutor, but applies only to "favorable evidence rising to a material level of importance." Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Moreover, the prosecutor's duty to disclose under Brady is limited to evidence a reasonable prosecutor would perceive at the time
The state supreme court concluded that WSPCL's general practice of peer review and destruction of erroneous draft reports was not exculpatory material in Woods's case, and that the prosecution did not have a duty to disclose the lab's general practices and procedures. This conclusion was not contrary to nor an unreasonable application of Brady under 28 U.S.C. § 2254(d)(1). The bare fact that the lab subjected DNA test results to peer review and discarded draft reports when peer review turned up an error does not tend to show that an error occurred in Woods's case. We recognize that destruction of a draft report that excluded a defendant as a match with a suspect's DNA would likely violate Brady in light of the report's impeachment value. Although WSPCL may have followed such a practice in those rare instances when its peer review process revealed an erroneous analysis, there is nothing to suggest that the state suppressed an erroneous draft report in Woods's case. Moreover, Dr. Brown's misconduct in Barfield occurred months after Woods's trial concluded, so the prosecution did not possess any information about Brown's actions in Barfield that could have impeached him at Woods's trial.
Even if evidence of WSPCL's general practices were not exculpatory, Woods argues that it would be reasonable to infer from Dr. Brown's conduct in Barfield and the delay in obtaining DNA test results in his case that WSPCL conducted tests in his case that were never reported to the defense. Woods contends the state supreme court wrongfully denied him an evidentiary hearing to develop this claim. We construe his argument as a claim that the state court's factfinding process was flawed and was therefore an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2). See Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.2004) (explaining that § 2254(d)(2) applies to challenges "that the process employed by the state court is defective"). A state court's fact-finding process is unreasonable under § 2254(d)(2) only when we are "satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court's factfinding process was adequate." Taylor, 366 F.3d at 1000.
Here, there was no defect in the state supreme court's fact-finding process. Although it might have been prudent to provide Woods with the opportunity to develop the facts underlying this aspect of his Brady claim, the state court's decision to deny him a hearing was based on its consideration of the declarations of Dr. Brown and MacLaren that were filed with the Washington Supreme Court. Although neither declaration expressly denied the existence of an erroneous draft report in Woods's case, there is nothing in those declarations or anywhere else in the record to suggest that such a report existed. It was not unreasonable for the Washington Supreme Court to deny Woods's request for a hearing when all he could offer was speculation that an evidentiary hearing might produce testimony or other evidence inconsistent with Dr. Brown and MacLaren's declarations.
We further conclude that the Washington Supreme Court did not make an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2) when it found that there was no showing Dr. Brown destroyed evidence in this case. The only evidence before the state court was that MacLaren reviewed Dr. Brown's test results and agreed with them. We agree with the Washington Supreme Court that "the record does not show that Dr. Brown intentionally destroyed exculpatory evidence
Because the state supreme court's ruling was neither an unreasonable application of federal law nor an unreasonable determination of the facts, 28 U.S.C. § 2254(d)(1)-(2), we affirm the district court's denial of relief on this sub-claim.
Woods alleges that the State failed to disclose the full details of the spillage of his first blood sample at WSPCL's laboratory in Spokane. Woods claims that this evidence would have shown that there was a significant risk that the rape kit swab taken from Jade Moore was contaminated when Woods's blood sample leaked, thus leading to a false positive DNA match. The district court found that Woods did not fairly present this sub-claim to the Washington Supreme Court and ruled that the sub-claim was procedurally barred. We agree.
State prisoners seeking a writ of habeas corpus from a federal court must first exhaust their remedies in state court. 28 U.S.C. § 2254(b)(1)(A). A petitioner has exhausted his federal claims when he has fully and fairly presented them to the state courts. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) ("Section 2254(c) requires only that state prisoners give state courts a fair opportunity to act on their claims."). "[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal
Here, Woods presented the state supreme court with both the operative facts and legal theory of his sub-claim that the State withheld evidence of WSPCL's general testing and review protocols, but he did not present facts relating to the breakage of the vial containing his first blood sample at the Spokane lab. Woods argues that, although his PRP never expressly raised a claim about the spillage of his blood sample and the potential for contamination of other evidence, his state court Brady claim alleging the non-disclosure of WSPCL's practice of discarding erroneous draft reports was sufficient to raise the issue of the prosecution's failure to disclose the mishandling of all the evidence related to DNA testing. In his amended PRP, Woods unequivocally stated that his Brady claim related to how WSPCL's general practices related to his case. Woods noted in his PRP that "counsel moved to take depositions of Dr. Brown, William Morig, and Donald MacLaren, all of the Washington State Patrol Crime Lab, to determine the specific practices in this case." (emphasis added). Woods suggests this language was sufficient to put the state supreme court on notice of the second Brady sub-claim he raised in his federal habeas petition.
Nowhere in the PRP's Brady section, however, does Woods mention the spillage of the first blood sample. Aside from his request to depose Morig, Woods's only reference in the PRP to the forensic work at WSPCL's Spokane facility stated that Morig received the rape kit swabs, prepared samples from the swabs, and sent the samples to other laboratories to be tested. The Brady claim presented in the PRP focuses entirely on the actions of Dr. Brown, both in the Barfield case and in Woods's case. Yet Dr. Brown had nothing to do with the storage, spillage, and breakage of the vial containing Woods's first blood sample. In fact, Woods does not allege that Dr. Brown even knew that a spillage occurred. As discussed above, Dr. Brown's conduct in the Barfield case does not create a presumption that WSPCL, as an organization, systematically suppressed exculpatory material. We thus fail to see how the Brady claim in Woods's PRP, which spoke only to Dr. Brown's procedures for testing and analysis in the Seattle lab, gave the state supreme court a full and fair opportunity to act on an allegation that the prosecution withheld evidence related to the spillage of a blood sample at WSPCL's Spokane laboratory. Accordingly, we conclude that Woods failed to present the facts underlying his second Brady sub-claim to the Washington Supreme Court, and we affirm the district court's ruling that the sub-claim regarding the spillage of Woods's blood sample is technically exhausted but procedurally barred.
Woods contends that the district court nonetheless should have entertained his sub-claim because he established cause for the procedural default and prejudice resulting from his failure to exhaust state remedies. See Banks v. Dretke, 540 U.S. 668, 690-91, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (holding that petitioner would be entitled to an evidentiary hearing in federal court if he could show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure). For a Brady claim, cause and prejudice "`parallel two of the three components of the alleged Brady violation itself.'" Id. at 691, 124 S.Ct. 1256 (quoting Strickler, 527 U.S. at 282, 119 S.Ct. 1936). A petitioner may establish
Notably, the prosecution disclosed before trial that the vial containing Woods's first blood sample had cracked and leaked at the Spokane lab. That disclosure put Woods on notice that other evidence may have been contaminated. Woods does not allege what further exculpatory facts the prosecution possessed but failed to disclose. Moreover, although Woods sought authorization from the Washington Supreme Court to conduct certain discovery, neither his discovery requests nor his request for an evidentiary hearing specifically related to the spillage of the blood sample or the possible contamination of other evidence. His failure to develop the factual basis of his claim, therefore, cannot properly be attributable to the prosecution's failure to disclose relevant evidence. We thus affirm the district court's dismissal of this sub-claim as procedurally defaulted.
Woods argues that he was denied his Sixth Amendment right to effective assistance of counsel on the basis of a number of deficiencies in his defense team's performance. The district court concluded that seven of these IAC sub-claims had been properly exhausted before the state courts and therefore considered them on the merits: (1) counsel's heavy workload; (2) counsel's lack of experience and training; (3) counsel's failure to properly impeach witness Johnny Knight; (4) counsel's failure to investigate and present Woods's diminished capacity defense; (5) counsel's failure to investigate and present Woods's voluntary intoxication defense; (6) counsel's failure to ensure that the DNA autoradiograms went into the jury deliberation room; and (7) counsel's failure to object to the use of Woods's alias, "Michael A. Smith," during the trial.
The district court also concluded that a number of the IAC sub-claims were procedurally
Both parties agree that the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), constitutes "clearly established federal law" providing the proper frame-work for assessing Woods's IAC claims. Under AEDPA, the primary issue is whether the state court adjudication of the Strickland claims was objectively reasonable. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). To prevail on an IAC claim under Strickland, a petitioner must show (1) "that counsel's performance was deficient," and (2) "that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
As to the first prong, a petitioner must prove that counsel's performance was so deficient that it "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. The Supreme Court has instructed lower courts to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. at 689, 104 S.Ct. 2052. As to the second prong, petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694, 104 S.Ct. 2052. Finally, even if Woods can satisfy both of those prongs, AEDPA requires that a federal court find the state court's contrary conclusions are objectively unreasonable before granting habeas relief. See Landrigan, 550 U.S. at 473, 127 S.Ct. 1938.
We first review those claims that the district court addressed on the merits, and then consider those the district court concluded were technically exhausted but procedurally barred.
Woods argues that, because his two primary defense attorneys faced unmanageable caseloads and were inexperienced in capital litigation, their performance was deficient. The district court rejected that argument, and so do we.
Woods points out several troubling aspects of his counsel's experience and caseload. For example, neither of Woods's attorneys had ever tried a capital case before. One of Woods's attorneys was the lead attorney on four other murder cases during the time he was representing Woods, while the other was responsible for three other aggravated murder cases. In fact, just weeks before trial, Woods's defense attorney requested an extended continuance, explaining that he had never prepared for a case of this magnitude before and that he did not feel comfortable beginning the trial. The court denied this request. Despite these alleged deficiencies, these circumstances do not, in and of themselves, amount to a Strickland violation. Rather, Woods must point to specific acts or omissions that may have resulted from counsel's inexperience and other professional obligations. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Thus, Woods is not entitled to relief on this sub-claim alone.
Woods claims that his attorneys should have investigated and pursued a
In re Woods, 114 P.3d at 618.
The district court agreed, adding that Woods's staunch insistence on his innocence made it reasonable for counsel to "cho[o]se to pursue a defense of alibi and mistaken identification rather than a defense of diminished capacity, the latter of which had a high probability of failure." The Washington Supreme Court and the district court also agreed that, even if counsel's performance had been deficient, the failure to present a diminished capacity defense was harmless in light of the strong evidence of Woods's premeditation. See In re Woods, 114 P.3d at 618-19. Woods argues that the state court's determination on this issue was objectively unreasonable and that he is entitled to an expansion of the record and an evidentiary hearing. We need not address whether Woods's counsel's performance was deficient because we conclude he cannot demonstrate prejudice and is therefore not entitled to habeas relief on this sub-claim.
To be entitled to habeas relief, Woods must demonstrate that the Washington Supreme Court unreasonably concluded that counsel's performance did not prejudice him. The Washington Supreme Court held that, "[e]ven if Woods' attorneys failed to investigate the diminished capacity defense, it is harmless error because there is strong evidence of premeditation by Woods." 114 P.3d at 618-19. Under the second prong of Strickland, to demonstrate prejudice, Woods must show that it is reasonably probable that the outcome of his trial would have been different had counsel conducted a reasonable investigation into his diminished capacity defense. 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability does not mean that we must determine that the jury more likely than not would have returned a verdict for something beside [sic] first degree murder, but only that [defendant] has shown `a probability sufficient to undermine confidence in the outcome.'" Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir.2002) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Thus, Woods must demonstrate that it was objectively unreasonable for the state court to conclude that his counsel's deficient performance did not affect, or otherwise undermine confidence in, the outcome of his trial.
Even assuming that Woods's counsel were constitutionally deficient in their performance, the state court's determination that this deficiency was not prejudicial was objectively reasonable. According to Woods, his counsel should have conducted further investigation into a diminished capacity defense. Yet, as the state supreme court noted, even if counsel had unearthed significant evidence of Woods's diminished capacity, "[t]o pursue the diminished capacity defense would have required Woods to essentially admit that he committed the murders, a possibility entirely inconsistent with his contention that he did not commit the murders." In re Woods, 114 P.3d at 618-19. Woods failed to present the Washington Supreme Court with any evidence (or even a declaration) that he would have been willing to abandon his alibi defense if presented with an alternative diminished capacity defense. We thus cannot say that the state court's determination on this sub-claim was objectively unreasonable.
Woods faults counsel for not adequately investigating and presenting a voluntary intoxication defense. Although related to a diminished capacity defense, voluntary intoxication constitutes a separate cognizable defense under Washington law. See State v. Hackett, 64 Wn.App. 780, 827 P.2d 1013, 1015 n. 2 (1992) (per curiam) (holding that the voluntary intoxication defense applies to intoxication by drugs as well as alcohol, and that a diminished capacity instruction was not broad enough to cover voluntary intoxication falling short of mental illness or disorder).
Although this type of alleged deficiency may prejudice a defendant, see Seidel v. Merkle, 146 F.3d 750, 757 (9th Cir.1998) (finding prejudice where counsel completely failed to investigate his client's mental health despite abundant signs in the record that his client suffered from mental illness); Jennings, 290 F.3d at 1019(finding prejudice where counsel failed to investigate and present mental health defenses and noting that the jury deliberated for two full days despite over-whelming evidence against the defendant), here we are not convinced that the state court's determination to the contrary was objectively unreasonable. Woods failed to submit any evidence that, had his defense counsel presented him with the option to pursue this defense, he would have agreed to it. In fact, the evidence before the state trial court demonstrated that Woods was insistent upon his innocence and that, in all probability, he would have rejected any defense requiring him to admit guilt. In sum, whether or not Woods's counsel's performance was constitutionally deficient, the Washington Supreme Court's determination that this failure did not prejudice Woods was not objectively unreasonable. Woods is therefore not entitled to relief on this sub-claim.
Woods alleges that counsel did not properly cross-examine Johnny Knight about (1) his prior theft conviction and (2) his statements to police that increasingly incriminated Woods over time. We address those arguments in turn.
Johnny Knight, one of the State's key witnesses, falsely denied any prior theft conviction during direct and cross-examination. Woods argues that his counsel was constitutionally deficient in failing to impeach Knight's testimony with a copy of the theft conviction record. In rejecting this argument, the Washington Supreme Court held:
In re Woods, 114 P.3d at 619 (internal footnote omitted). This characterization of the record is not quite accurate. Rather, Knight denied having a theft conviction and, after Woods's attorney objected, admitted that he had been convicted of a "drug transaction." After a brief colloquy with counsel, the trial judge stated in open court: "[Knight is] subject to recall or you can just put in the evidence about the conviction." Woods's counsel then moved on to other lines of questioning without asking any further questions about the theft conviction or introducing any evidence pertaining to it.
Nor is Woods entitled to relief on the basis of his counsel's failure to confront Knight with evidence that his statements to police changed significantly after he was charged with three felonies. On April 28, 1996, the police questioned Knight and reported: "Johnny Knight denied having knowledge of the assaults or intention of any assaults that [Woods] may have been involved in." On May 7, 1996, Knight was reinterviewed by the police and again said nothing about Woods confessing to the assaults.
On February 13, 1997, however, Knight was arrested for drug and firearm crimes for which he could face significant prison time. A week later, police interviewed Knight in jail, and he alleged for the first time that on the day after the murders, Woods confessed that he had killed the women. During this interview, Knight also told police that when he met up with Woods after the murders, Woods had women's jewelry, cash, and some credit cards which had been taken from the victims. Additionally, Knight claimed that Woods said he needed "to get out of Spokane."
By the time of Woods's trial, Knight had been convicted of several felonies stemming from his arrest and had been sentenced to 10 years in prison. The jury at Woods's trial did not learn of Knight's conviction and sentence. Woods argues that counsel's failure to make the jury aware of Knight's arrest as a possible reason for the change in Knight's story constituted a Strickland violation.
The Washington Supreme Court never addressed this sub-issue in its decision, nor did Woods's personal restraint petition raise it. Nonetheless, the district court concluded that this claim had been properly exhausted because the new factual allegations did not fundamentally alter the legal claim already considered by the state court.
Woods contends that his trial counsel's failure to object to the use of Woods's alias, "Michael A. Smith," was constitutionally deficient and prejudicial. The Washington Supreme Court, however, determined that the use of the alias was proper under state law as "relevant and material to prove or disprove any of the issues in the case." 114 P.3d at 619 (citing State v. Elmore, 139 Wn.2d 250, 985 P.2d 289, 310 (1999); State v. Cartwright, 76 Wn.2d 259, 456 P.2d 340 (1969)). Specifically, the Washington Supreme Court determined that, because the identity of the perpetrator was at issue, because Woods was booked at the jail under the name "Michael A. Smith," and because two of the fingerprints that were found at the crime scene were identified as belonging to "Michael Smith," the use of the alias was appropriate to identify Woods as the perpetrator. Id. That determination of state law is binding on this court. Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005). Thus, even assuming Woods's attorney was deficient for not objecting to the use of his alias, we cannot conclude that it was prejudicial; even had defense counsel made the objection, it would have been properly overruled. Woods is therefore not entitled to habeas relief on this claim.
Woods argues that his trial counsel failed to effectively challenge the State's DNA evidence. Specifically, Woods alleges that his counsel were ineffective in the following three ways: (1) they failed to present a defense expert to interpret the results of the DNA tests; (2) they failed to explore the issue of DNA contamination; and (3) they failed to ensure that the jury could examine the autoradiograms ("autorads").
The district court did not reach the merits of claims (1) and (2) (collectively the "DNA-IAC" claims) because it concluded that these claims had not been presented to the Washington Supreme Court and were therefore technically exhausted, but procedurally defaulted. See Wash. Rev. Code § 10.73.090; see also Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546.
The State argues that the factual and legal allegations underlying Woods's DNA-IAC claims were never presented to the state supreme court. Woods argues that he exhausted the DNA-IAC claims in state court or, in the alternative, that if his claims were not exhausted, that he established cause and prejudice for the procedural default. It is undisputed that Woods's federal habeas petition makes
Ultimately, we need not decide the question of whether Woods's claims are exhausted. If Woods exhausted his claims and the state supreme court adjudicated the claims on the merits, we conclude that the state court's decision was not unreasonable. If Woods's federal claims allege new facts and legal theories such that the claims are unexhausted, we conclude that Woods cannot show cause and prejudice for his failure to raise these claims with the state supreme court, and that his claims are therefore procedurally defaulted.
In his PRP, Woods alleged that his counsel provided ineffective assistance in challenging the DNA evidence at trial and cited the Supreme Court's decision in Strickland in support of that claim. Woods alleged that special counsel Fred Leatherman, who was responsible for cross-examining the State's DNA expert, was unavailable and ineffective. Woods further alleged that his defense counsel, public defenders from Spokane County, lacked training and experience and were generally incapable of handling the DNA evidence in his case.
To establish that trial counsel were ineffective, Woods alleged that "Leatherman[, special counsel brought in for purposes of cross-examining the prosecution's DNA witness,] was based in Seattle ... [,] was himself trying another case in federal court in Seattle through the month of June," and "was available to conduct his portion of the case, i.e., cross examining Dr. John Brown, the state's [DNA] expert, only on Mondays." Woods also stated in his PRP that Leatherman flew into town on the day of cross-examination and out the same day. Leatherman's only communication following cross-examination of DNA expert Dr. Brown, Woods alleged, was a fax to defense counsel with "some points" for closing argument. Woods further noted that communication between defense counsel and Leatherman was so poor that defense counsel confessed during closing argument to finding the DNA evidence confusing.
Woods also presented facts that could support his claim that his trial counsel were incapable of interpreting the DNA evidence without an expert. Specifically, Woods alleged that he was denied his Sixth Amendment right to effective assistance of counsel because "[t]he attorneys from Spokane County Public Defender's Office did not feel capable of handling the DNA evidence in the case." Woods explained that in "critical areas of investigation counsel did nothing," that counsel lacked training and experience and were overworked, and that counsel were unprepared and disorganized. Woods offered as support for this argument his attorney's statement to the jury during closing arguments and directly after the DNA cross-examination that "the DNA evidence `was confusing to me.'"
Assuming that the facts Woods presented to the state court were specific enough to exhaust the DNA-IAC claims, our review of the state court's decision is limited to those facts. Pinholster, 131 S.Ct. at 1398. Based on this record, and keeping in mind the double-deference due the state court's conclusion under section 2254(d)(1), see Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011), we cannot say that the Washington Supreme Court unreasonably denied Woods's claims because Woods did not establish prejudice under Strickland. Although Woods challenged the effectiveness of his trial counsel's treatment of the state's
Only in the course of federal habeas litigation did Woods present affidavits by DNA experts — evidence that we are precluded from considering under section 2254(d)(1) by Pinholster
We also conclude that if the claims were not exhausted, there is no cause to excuse the procedural default. Woods argues that any failure to present his claim to the Washington Supreme Court was due to ineffective representation by his state post-conviction counsel. The Supreme Court has unambiguously held, however, that ineffective representation is not cause for procedural default. See Coleman v. Thompson, 501 U.S. 722, 752-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Manning v. Foster, 224 F.3d 1129, 1133 (9th Cir.2000).
In sum, we need not reach the question of whether Woods exhausted his state law remedies with regard to his DNA-IAC claims or instead raises new unexhausted claims. In either case, Woods is not entitled to habeas relief, and we affirm the district court's denial of these claims.
Woods argues that his counsel's failure to ensure that the DNA autorads
The Washington Supreme Court held that, "when an exhibit is used for illustrative purposes only and the jurors are instructed that the exhibit is not evidence, than [sic] the exhibit should not go to the jury room." Id. at 621 (citing State v. Lord, 117 Wn.2d 829, 822 P.2d 177, 194 (1991)). Thus, the court held that the trial court correctly refused to send the autorads to the deliberation room for consideration. Id. at 428, 114 P.3d 607. We are bound to defer to that interpretation of Washington state law. See Bradshaw, 546 U.S. at 76, 126 S.Ct. 602. In light of that ruling, Woods cannot show prejudice resulting from his counsel's failure to object to the trial court's exclusion of the autorads from the jury deliberation room. Even if defense counsel had objected, the objection would have been properly overruled under Washington law. Woods is therefore not entitled to habeas relief on this claim.
In his federal habeas petition, Woods asserted that he received ineffective assistance of counsel when his trial counsel failed to address Venus Shaver's "recovery" of her memory of the attack and failed to cross-examine her adequately on her prior false claim that Woods raped her. The district court concluded that because Woods had failed to fairly present these claims to the state court, they were procedurally barred. On appeal, Woods argues that the district court's determination was erroneous. We disagree.
In his opening brief, Woods admits that he did not specifically address in his PRP his counsel's failure to impeach Venus Shaver effectively. In fact, Woods's Washington Supreme Court PRP makes no mention of either Venus Shaver or her "recovered" memories. He argues, however, that because these new arguments do not fundamentally alter his claim that trial counsel were ineffective and unprepared to impeach witnesses, he fully and fairly presented it to the state court.
Although Woods alleged the specific Sixth Amendment guarantee recognized by Strickland, his state court petition did not make any reference to his counsel's failure to impeach Venus Shaver. The most analogous claim is Woods's allegation that his counsel failed to impeach Johnny Knight properly. That claim simply did not provide a sufficient factual basis for the state supreme court to have a fair opportunity to apply controlling legal principles to the facts relating to the claim. Thus, we agree with the district court's judgment that Woods failed to exhaust this claim and that it is procedurally defaulted.
Woods argued in his PRP that the cumulative impact of his counsel's deficiencies prejudiced his defense and requires reversal of his conviction. We have previously recognized that "prejudice may result from the cumulative impact of multiple deficiencies." Cooper, 586 F.2d at 1333. "[A]lthough individual errors may not rise to the level of a constitutional violation, a collection of errors might violate a defendant's constitutional rights." Davis, 384 F.3d at 654 (citing Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir.1995)). Although Woods's trial counsel might not have provided a model defense, counsel's "missteps and misjudgments did not render [Woods]'s trial fundamentally unfair." Id. We therefore affirm the denial of relief on Woods's claim of cumulative deficiency.
For the foregoing reasons, we affirm the district court's denial of Woods's petition.
AFFIRMED.
Woods cannot meet this high standard. Woods fails to allege what facts relevant to his Brady claim or to the issue of cause and prejudice will be uncovered by an evidentiary hearing aside from the suspicion that the prosecution might have been hiding information relating to DNA contamination. We agree with the district court that these speculative allegations do not meet the required showing under section 2254(e)(2), and we affirm the district court's denial of an evidentiary hearing.
